THE State V Leeward Freddy

### Preamble
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HMA 20/19
CRB CG 134/19
THE STATE
vs
LEEWARD FREDDY
HIGH COURT OF ZIMBABWE
MAWADZE J
MASVINGO, 20 May, 2019
Criminal Review
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after ascertaining from the Minister responsible for social welfare that accommodation is available, order that he shall be placed in a training institute in Zimbabwe or in a reform school in the Republic of South Africa for the period specified in subsection (1) of section three hundred and fifty-two.”

After I raised a query with the trial Magistrate as to whether he or she had complied with the provisions of s 351(2)(b) of Criminal Procedure and Evidence Act, [Cap 9:07] by ascertaining that that there is indeed accommodation at Kadoma Training Institute before committing the convicted male juvenile to that institution, the response by the trial Magistrate was rather perfunctory.

The trial Magistrate said he or she simply complied with the recommendations of the Probation Officer as per the Probation Officer’s report. This is incorrect. The Probation Officer had suggested that the convicted male juvenile be referred to the Children’s Court and dealt with in terms of s 20 (1) of the Children’s Act [Cap 5:06]. The trial Magistrate although placing the convicted male juvenile at the said training institute he or she did not do so sitting as a Children’s Court and was not exercising the powers outlined in s 20(1) of the Children’s Act [Cap 5:06].

The truth of the matter is that the trial court simply proceeded in terms of s 351 (2)(b) of the Criminal Procedure and Evidence Act [Cap 9:07]. Be that as it may, whether the trial Magistrate had exercised the powers outlined in s 20 of the Children’s Act [Cap 5:06] sitting as Children’s Court or acted in terms of s 351(2)(b) of the Criminal Procedure and Evidence Act [Cap 9:07] the bottom line is that the trial Magistrate was enjoined to first ascertain from the responsible authority whether there is accommodation at Kadoma Training Institute before committing the convicted male juvenile to the institution.

The trial Magistrate in a bid to explain this omission said he or she telephonically contacted the said institution and was advised telephonically that there was such accommodation. I have no reason to doubt the integrity of the trial Magistrate. His or her ability to think on his or her feet is remarkable! However, the fact remains that a Magistrate Court is a court of record. This means that inquiries made in compliance with the law cannot be sufficient if they are made telephonically only. There is need for written documents or proof.

How will this court in exercising its review powers ascertain compliance with the law where such  compliance has purportedly been made telephonically? The proper way to comply with the provisions of s 351(2)(b) of Criminal Procedure and Evidence Act [Cap 9:07] is to simply obtain and attach such proof. This may be in the form of a letter of confirmation from the head of such a training institute that accommodation for the convicted juvenile is available. The need for this confirmation is obvious. In my view it matters not whether such an inquiry is done by the trial Magistrate or the Probation Officer.  The bottom line is that such proof of confirmation should be part of the record of proceedings.

I am inclined to condone this omission by the trial Magistrate in the interest of the convicted male juvenile. This court would be not acting in the best interests of the said convicted male juvenile if it was to decline to confirm these proceedings by withholding its certificate, worse still by setting aside the order imposed. This court as the upper guardian of minor children should always and at all times act in their best interests. Be that as it may my exhortation is that trial Magistrates should nonetheless comply properly with the provisions of the law. I shall however confirm the proceedings as in accordance with real and substantial justice but nonetheless seek the concurrence of my brother MAFUSIRE J as I have made an addition to the order made by further suspending the passing of sentence in CRB CH 275/18 for 5 years on the usual conditions.

In the result, I make the following order;

The proceedings are confirmed as in accordance with real and substantial justice.

The order of placing the convicted make juvenile at Kadoma Training Institute for 3 years be and is hereby confirmed.

The passing of sentence on the said convicted male juvenile on CRB CH 275/18 is further postponed for 5 years on condition the said male juvenile does not commit any offence involving dishonesty within the said period for which he is sentenced to a term of imprisonment without the option of a fine.

Mafusire J. concurs ………………………………………………………..